Lawsuit over 2nd Ward alderman election pushed to Monday

Friday

Apr 5, 2013 at 6:00 AM

Incumbent Kay Hill summoned in case as defendant; Wailand still hoping to be declared winner before April 9

By Dave GongMcDonough County Voice

McDonough County Circuit Court Judge Rodney Clark on Thursday continued a lawsuit contesting the results of the February Macomb city aldermanic election until Monday — one day before a supplemental municipal election is scheduled to take place.

The lawsuit — filed by Western Illinois University student and Ward 2 challenger Steven Wailand — contests the so-called "50 percent plus one vote" rule, a seemingly unwritten election rule that states that any candidate running for city council in the February election must receive 50 percent plus one of the vote in order to be declared the winner. Of 33 votes cast for the Ward 2 seat in late February, Wailand received 17 votes, while incumbent Kay Hill received 16.

"I believe Kay Hill should be summoned to court and made a party as a defendant," Clark said Thursday.

Citing a number of legal precedents, the judge said it was his opinion that Hill is an "indispensable party" to the lawsuit, as she has just as much of an interest in the outcome of the lawsuit as Wailand.

By proceeding without Hill, Clark said he felt he would be violating case law.

Currently, the suit names only the city of Macomb, Mayor Mike Inman, City Clerk Melanie Falk and County Clerk Gretchen DeJaynes as defendants. Representing DeJaynes is Ken Wang, McDonough County Assistant State's Attorney. Representing Falk and the city is City Attorney Kristen Petrie.

Wailand is represented by Diane Cohen and Jacob Huebert of the Liberty Justice Center in Chicago.

During a news conference after the hearing, Cohen said although she and Huebert did not believe it was necessary to include Hill as a defendant in the case, they will respect the judge's order and serve Hill with the required summons.

However, Cohen said she and Huebert still believe the case is a matter of law for the judge and is eager to return to court to "get down to the merits of this case," which she feels boil down to one issue.

"The city is giving a meaning to a statute that they've enacted that is contrary to the language itself of the law and frankly common sense," Cohen said. "And also the Illinois Supreme Court's determination of what a majority means."

Wailand's attorneys allege in the lawsuit that the "50 percent plus one vote" rule does not actually exist in writing in the Macomb Municipal Code, the city's Special Charter or in any election or municipal code in the state. Additionally, the lawsuit alleges that using the "50 percent plus one vote" rule to deny declaring Wailand the winner of the election is unconstitutional.

"There is no reference whatsoever to the term 50 percent plus one vote," Cohen said. "You can scour the Illinois Election Code, the Illinois Municipal Code, the city of Macomb's Special Charter from the 1800s, and the city of Macomb's ordinance and you will not find reference to any term that says '50 percent plus one vote'."

To that end, Wailand and his attorneys are requesting the court to declare Wailand the winner of the Ward 2 election and to also declare the definition of a majority as "more than half of the total."

The suit also asks for a Writ of Mandamus, which is a court order that would require the city and county clerks to certify Wailand as the elected alderman.

According to the Macomb Municipal Code, "The candidate receiving a majority of the votes cast for mayor, clerk, treasurer, alderman at-large and city alderman in each ward or wards at any general election shall be declared elected."

The Voice could not find any mention of a "50 percent plus one vote" rule in the portion of the municipal code relating to the election of city officials.

"This case deals with one issue and that is what does the statute mean and what is the import of the meaning of the statute," Cohen said. "

Petrie did not have any comment from the defense immediately after the hearing. Hill also did not have any comment on the matter Thursday afternoon.

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